Marriage Equality: Where We Now Stand

So where do we now stand in the ongoing Sevcik v. Sandoval legal psychodrama? Here's the latest:

- The Ninth Circuit judges just reinstated their mandate to end Nevada's marriage ban.

- As we reported earlier, the usual (H8 filled) suspects dropped their petition to the US Supreme Court for a stay on the Ninth's ruling in favor of marriage equality. While the SCOTUS drama continues in Idaho, it's officially over here in Nevada.

- Now, all eyes turn to Las Vegas Federal District Judge James Mahan. Since the case is now in his court, it's up to him to issue an injunction barring any further enforcement of the Question 2 marriage ban.

- Once Judge Mahan issues this injunction that everyone in The Silver State is now eagerly awaiting, Clark County will begin issuing marriage licenses an hour later. Other Nevada county clerks will likely soon follow.

- But in the mean time, Lambda Legal's Tara Borelli is wondering why we're even waiting: “Finally, the confusion has ended and the Ninth Circuit’s decision is final and fully in effect. While the trial court will enter an order in the case finalizing relief, nothing prevents marriages from beginning immediately for same-sex couples in Nevada.” And technically, she's correct. Our hunch is that after yesterday's Supreme clusterf-ck, county clerks are exercising extreme caution (perhaps, too extreme).

- And finally, expect more legal movement in the coming days in Alaska, Arizona, & Montana. These are the remaining states covered by the Ninth Circuit that don't yet have marriage equality (other than Idaho, which is appealing Tuesday's ruling).

So here's where we stand now. As soon as we find an announcement stating when marriages will begin in Nevada, we'll post an update.

Hurry Up... & Wait.

We started the morning thinking it was about to happen. That was after we spent much of yesterday thinking we had to wait a little longer. But then, we were thrown another delay. And suddenly, we had to wait again.

But now, the wait may finally be coming to an end. Just hours after US Supreme Court Justice Anthony Kennedy issued a temporary stay on yesterday's Ninth Circuit Federal Court of Appeals ruling bringing marriage equality to Nevada and Idaho, Justice Kennedy recalled his own stay.

So what now? In Justice Kennedy's revised order, a temporary stay has been issued for Idaho. There, Governor Butch Otter (R) & Attorney General Lawrence Wasden (R) are requesting an en banc (or full court) hearing in the Ninth. The temporary stay will last until Thursday, when both sides have a deadline to respond to Otter's request for an en banc hearing and an extended stay of the Ninth's panel ruling.

The full Ninth Circuit is also asking for responses from both sides in Nevada by 5:00 PM Thursday, as the usual (H8 filled) suspects have requested a stay for Nevada. However, neither Governor Brian Sandoval (R) nor Attorney General Catherine Cortez Masto (D) is appealing the case. And considering the precedent the Supreme Court set in Perry v. Brown (the California Prop 8 case), it doesn't seem likely the Court will even grant the usual suspects standing to further appeal Sevcik v. Sandoval.

So what now? Officially, Nevada is about to receive legal marriage equality. But technically, Washoe County, Clark County, and other county clerks are turning away couples seeking licenses until Nevada federal district Judge James Mahan and/or the full Ninth Circuit clarifies next legal steps.

Today has felt like an infuriating game of "hurry up & wait". We can only imagine how the couples seeking marriage licenses must feel right now. Stay tuned here at Nevada Progressive as we continue attempting to wrap our heads around the legal ping-pong game this Sevcik case is rapidly devolving into.

Dammit, Justice (Kennedy) Delayed Again.

Of course, it can't be easy. It can't be simple. It must be confusing.

When we woke up this morning, marriage equality was set to become the law of the land here in Nevada today. Because the State of Nevada already promised not to appeal the case, the legal fight was supposed to end today.

But then, this happened. And mass confusion on Twitter soon followed. Some legal experts seem to think US Supreme Court Justice Anthony Kennedy's temporary stay in Idaho also applies to Nevada because both cases were consolidated by the Ninth Circuit Federal Court of Appeals, but SCOTUSBlog's Lyle Denniston is reporting Justice Kennedy's stay only applies to Idaho (as that state is appealing The Ninth's ruling).

For now, it looks like Nevada officials are once again erring on the side of caution. Moments ago, the Clark County Clerk's Office recanted its proclamation from last night and will not issue marriage licenses today. And since the Washoe County Clerk's Office had already stated its plans to wait this out, that doesn't seem to be changing any time soon.

So what happened? Short answer: Idaho. Longer answer: Idaho Governor Butch Otter (R) is appealing the ruling, and the state's lawyers requested a temporary stay from Justice Kennedy. So Kennedy granted the stay.

But because Idaho and Nevada cases are consolidated, we must wait even longer to find out where we actually stand. Will the Supremes "decouple" the cases? Will they decide to take up both cases? Or will both cases be subsequently dismissed (like all the other ones were on Monday)?

Stay tuned. This isn't over yet.

Marriage Equality... Is Finally Coming to Nevada!

Boom goes the dynamite. Just like this, it's over.

We hold that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.

Judge Stephen Reinhardt wrote the majority opinion. Judges Marsha Berzon and Ronald Gould agreed, so the panel was unanimous in rendering this decision. The full Ninth Circuit opinion is now up. And like that, marriage equality is coming to Nevada! Oh, and it's coming to Idaho, too!

Actually, this is no suprise. Back in September, the Ninth Circuit judges were highly skeptical of the H8ers' whines and screams. H8ers are going to hate... But the Ninth Circuit panel wanted none of it.

Now keep in mind that this decision will not be appealed by the State of Nevada. And since the US Supreme Court just turned down seven cases appealing lower court pro-marriage rulings, it's probably a good idea for our world famous wedding chapels to prepare for the onslaught of wedding requests that's about to begin any day now.

Moments ago, Reps. Dina Titus (D-Paradise) & Steven Horsford (D-North Las Vegas) tweeted their congratulations. We're still awaiting word from Cresent Hardy (R-"Segregation Laws"), Adam Laxalt (R-"Political Issues"), & Barbara Cegavske (R-License to Discriminate). And we have a feeling we'll see far more reactions from elected officials across the state as the news sets in.

"It's Over."

It always feels so good to be validated. But how are we supposed to feel when Wisconsin Governor Scott Walker (R) validates us? Well, this is why we're feeling quite awkward this morning.

But hey, he said it: "It's over." And he's correct about this.

Yesterday, the US Supreme Court green-lighted marriage equality in Wisconsin, Virginia, Indiana, Oklahoma, and Utah by denying petitions for appeal in their respective marriage cases. And because the Court let these appellate court rulings stand, marriages may soon begin in even more states. Already, Colorado Attorney General John Suther (R) stood down and ordered all 64 Colorado county clerks to begin issuing marriage licenses as soon as possible, so marriages are now even happening there.

Just a year ago, marriage equality in Utah was unimaginable. But now, it's reality.





And eventually, it will be reality here in Nevada. Just don't tell Nevada Republican luminaries Adam Laxalt & Cresent Hardy. For them, "segregation laws" always make great "political issues". And yes, they still have plenty of company in the Nevada Republican Party.

Oh, and don't tell the religious wrong. They're still condemning the US Supreme Court for striking down (back in 2003!) state laws that pushed police officers into people's bedrooms. And of course, they're condemning yesterday's Supreme (in)action as "unconstitutional". Clearly, they're still in need of "basic plumbing lessons" on Constitutional law... Along with a general reality check.



Apparently, they haven't received Scott Walker's memo yet. It's over. Yes, truly, it's over.

Well, OK, it's not completely over yet. It won't be until we have marriage equality nationwide. But in terms of the political "optics" (that certain media pundits love to talk about), it's over. Sorry, H8ers.

Justice... Just Fashionally Late

Finally, we must wait no more... At least when it comes to the US Supreme Court. The nation's highest court had several marriage equality cases awaiting action. And now, we know the Supreme Court has denied petitions (for appeal) in all those cases.

So what does this mean? In short, marriage equality is now the law of the land in at least 5 more states: Virginia, Indiana, Wisconsin, Oklahoma, and Utah. By denying petitions of appeal, lower court rulings in favor of marriage will stand. This also means SCOTUS stays on those rulings expire today, and this is why marriages will likely begin today in Virginia and Wisconsin.

But wait, there's more. The Supreme Court essentially upheld these federal appellate court rulings de facto by dismissing the appeals. This will require lower federal courts within these appellate court circuits (4th, 7th, & 10th) to abide by these appellate court rulings. And this most likely opens the door to marriage bans being struck down quite soon in North Carolina, West Virginia, South Carolina (all 4th Circuit), Kansas, Wyoming, and Colorado (all 10th Circuit). (Maryland, Illinois, and New Mexico already have marriage equality.)

But wait, what about us? Well, that's the downside of today's ruling. Because the 9th Circuit hasn't yet issued a ruling on Sevcik v. Sandoval, we'll have to wait a little longer here in Nevada.

But then again, we may not have to wait that much longer. If the 9th overturns Nevada's marriage ban (as most legal observers expect), the Supreme Court may not decide to place a stay on that ruling should opponents appeal. After all, the Court just dismissed all these cases.

Nevada's LGBTQ families have been waiting 12 years for this. And sadly, they will have to wait just a little longer for justice to finally arrive. But now, we can feel more confident about justice arriving to The Silver State. Just pardon her for arriving fashionably late.

Still Waiting

We've been waiting all week for this. And now, we have our answer. And yes, it involves another week of waiting.

Earlier today, the US Supreme Court announced a slew of cases it will be taking up next session. None of those cases are marriage equality cases.

However, the nation's highest court may announce next week more cases it will be taking up in the next session. Might Justices be waiting for decisions from the Ninth Circuit? (Probably, along with decisions from the Sixth Circuit on Tennessee's, Kentucky's, Ohio's, and Michigan's respective marriage bans.)

One of the cases now at the Supreme Court is Kitchen v. Herbert. This is the suit challenging Utah's marriage ban. If the Court decides to reject this appeal, lower court rulings in favor of marriage equality will stand... And marriages will resume in Utah.

Marriage equality will also come to Virginia, Indiana, Wisconsin, and Oklahoma by the end of the year if the Supreme Court rejects appeals in all those cases. But wait, aren't we missing a state?

Hold on. We haven't been forgotten. Actually, Sevcik v. Sandoval is still in San Francisco at the moment. Even though most legal observers have a good idea as to how the Ninth Circuit will rule on Nevada's marriage ban, we still don't have an actual ruling yet. And since the usual suspects will likely appeal if the judges rule against upholding the 2000/2002 marriage ban, Nevada may be included on the Supreme Court's 2015 docket should the Justices decide to take up some or all of the marriage cases.

But for now, we're still waiting.

How It All Started

(Today, we're sifting through the Nevada Progressive archives, all the way back to April 2012. Yes, we've been monitoring the Sevcik v. Sandoval law suit since its infancy. And now, we await both a decision from the Ninth Circuit Federal Court of Appeals and a possible intervention from the US Supreme Court. So today, let's go all the way back to the beginning of this groundbreaking civil rights law suit.)

Last night, the lead plaintiffs in the case that's destined to shake up Nevada's marriage law went to Ralston to make their case.

(Start at 9:00.)



Yet while we see a new round of media buzz on this issue, let's not forget that there's an actual case to be tried in court. As we touched on yesterday, how the federal courts taking up this case interpret the Equal Protection Clause of the 14th Amendment will be key. And while there are similarities to the Prop 8 case in California, there's one key difference that Prop 8 Trial Tracker noted yesterday.

Lamdba Legal’s suit is no doubt in part inspired by the success of the American Foundation for Equal Rights in the Prop 8 case, Perry v. Brown, which led to historic rulings in favor of marriage equality in California both at the district and appellate court levels. Nevada, like California, falls under the jurisdiction of the Ninth Circuit Court of Appeals, so lawyers in the Sevcik case could cite the Prop 8 ruling in the Ninth Circuit as precedent. Additionally, any appeal of the eventual Sevcik ruling would end up at the Ninth Circuit just like Perry did.

Despite these similarities, the legal arguments that Lamdba Legal are pursuing in Sevcik are not quite the same as AFER’s arguments in Perry. The central complaint in the new Nevada case is an equal protection claim that domestic parternships violate the civil rights of gay and lesbian couples. In the Prop 8 case, AFER made the same equal protection claim but also argued for a fundamental right to marriage under the U.S. Constitution. Tara Borelli, a staff attorney with Lamdba, explained to MetroWeekly that the group “certainly believe[s] that the fundamental right to marry includes same-sex couples, but this court doesn’t need to answer that question to rule for the plaintiffs here. We’re convinced that our equal protection claim is so clearly correct that we want to keep the focus on that claim.”

Lambda Legal’s strategy makes the Sevcik case a more conservative one than the Prop 8 case in Perry, and would appear to be a response at least in part to the Ninth Circuit’s ruling in the Prop 8 case, which declined to address the fundamental right question and instead focused more specifically on the circumstances unique to California’s situation.

In explaining Lambda’s complaint, Borelli said, “One of the reasons that we’re suing in the state of Nevada is that this is a particular equal protection problem that this case examines. It’s the kind of problem created where a state excludes same-sex couples from marriage deems them fit for all of the rights and responsibilities of marriage through a lesser, second-class status — in this case, domestic partnership. That shows just how irrational that state’s decision is to shut same-sex couples out of marriage.”

So the Sevcik case here in Nevada will come down to whether domestic partnership actually provides "equal protection under the law", and if we can ever have true equal protection as long as the Question 2 marriage ban remains on the books. Unlike AFER's argument for a broad, nationwide fundamental right to marry that's being made in the Perry case in California, Lambda Legal is making a narrower argument based on the inequality present in Nevada family law and how that can not make federal Constitutional muster. It looks like Lambda Legal is confident that even if some federal judges are hesitant to use one stroke to knock down all the state marriage bans at once, they have to closely examine situations like ours and realize that we're experiencing clear and illegal discrimination.

So where will we go from here? For now, this will be in courtroom of Senior Judge Roger Hunt. And regardless of how Hunt decides, this will likely head next to the Ninth Circuit Court of Appeals. Interestingly enough, The Ninth is the same court that issued a narrow ruling in the Perry case back in February, a narrow ruling centered on the 14th Amendment's Equal Protection Clause. And funny enough, the Sevcik case will be argued on the 14th Amendment's Equal Protection Clause. Coincidence?

And like the California case, don't expect any immediate resolution. This may very well end up on the Supreme Court docket, but perhaps not for another 3-5 years. So buckle up and get ready for a long and bumpy and fascinating and trailblazing ride.

The Waiting Game

Last week, the State of Nevada had no one present. No one even bothered to show up for court in San Francisco. Instead, the judges of the Ninth Circuit Federal Court of Appeals instead had to endure this bucket full of crazy last week.

We will likely receive a ruling from the Ninth on Sevcik v. Sandoval fairly soon. And so far, marriage equality seem to be liking their odds.

Yet now, other states may have leapfrogged ahead of Nevada on the way to the US Supreme Court. However, Nevada may yet slip onto The Supremes' docket if the Ninth issues a ruling on Sevcik this week.



As we've discussed before, the US Supreme Court set this chain of lower court marriage rulings with its US v. Windsor. Will the SCOTUS Justices who ruled so passionately in favor of LGBTQ civil rights reverse course so suddenly? We seriously doubt it, but we can't take anything for granted there.

Now here's where it becomes even more interesting. The State of Nevada dropped its legal defense of marriage discrimination in February. That's why no one from the State of Nevada even bothered to show up in San Francisco last Monday to argue for the Question 2 marriage ban. And that's why US Supreme Court Justices will have to determine standing (a la Prop 8 California) should the usual suspects decide to appeal the Ninth's ruling.

This is why we're now playing the waiting game. If the Ninth Circuit rules in favor of equality, Nevada may become State #18 for marriage equality by next month. Or we may not, should SCOTUS decide to place that ruling on hold. Perhaps our case may be one of the marriage cases that will set a national precedent next year. Or perhaps not, should SCOTUS decide not to take up Sevcik at all.

Whatever happens, this month promises to be an exciting one for civil rigts activists here in The Silver State. We're just waiting to see what comes next.

This Is Why Elections Matter.

This morning, the US Supreme Court decided to tinker with workers' right to unionize... And the very survival of the American labor movement... And women's rights at work... And employers' ability to dictate their workers' health care decisions.

Both decisions were allegedly narrow, but they have the potential to set very dangerous precedents. Oh, and both decisions were 5-4. Who could have guessed the Roberts Court is so extremely ideologically divided?

In Harris v. Quinn, the 5 conservative Justices ruled in favor of a handful of home health care workers who did not want to pay union dues to enjoy the benefits of union negotiations. In order to curb "free riders", non - union workers were required to pay some sort of reimbursement fees to the unions for negotiating higher pay and better benefits for them. But now, 5 Justices (guess who!) just punctured a hole in this arrangement.

Now, they claim there's a separate class of workers who are "public employees" but are not really "public employees". Confused yet? Try Andy Kroll's Mother Jones primer for Harris. Suffice to say, today's ruling doesn't completely eviscerate the American labor movement... But it does bruise workers and threatens more pain ahead.

And then, there's Sebelius v. Hobby Lobby. Once again, we have a 5-4 ruling. Once again, we have a troubling precedent that threatens workers' rights. And once again, we have theoretical "religious freedom" valued over real women's health.

In Hobby Lobby, 5 Justices (guess who!) ruled that "closely held corporations" (essentially family run enterprises) can claim "religious objections" when denying workers contraception and other forms of reproductive health care. Strangely enough, some progressives are breathing sighs of relief today because this rather jumbled ruling actually gave plenty of room for the federal government to step in and provide reproductive health care to affected workers. The ruling was also designed to be narrow enough to avoid threatening other health care benefits (like blood transfusions and vaccinations) and/or legalizing workplace discrimination.

Still, this sets a frightening precedent. What if the hardest of hard-line conservative Justices just had one or two more votes on the Supreme Court? The message from Justice Samuel Alito (who authored both majority opinions) seems to be that he's waiting for just this to go even further in the direction of undoing the entire past century of progress on workers' rights and women's rights.

Here's a helpful hint: This is why elections matter. Presidents appoint and Senators confirm Supreme Court Justices. And there's a good chance we'll see at least one more vacancy this decade. Imagine the difference one vote could have made today.

This is why elections matter.

Hickey's Honest Hiccup

While most of our attention has been focused on Washington lately, we can't completely ignore recent rumblings from Carson City. One, in particular, is quite disturbing. And of course, it's the one from everyone's favorite Nevada G-O-TEA bomb thrower, Assembly Member Pat Hickey (R-Reno).

In a recent conservative talk radio interview, Assembly Member Hickey experienced some diarrhea of the mouth got candid about Republicans' plan to win the 2014 Election cycle. In short, they're hoping you don't vote.



And there's actually more to it than just that. As ThinkProgress' Ian Millhiser noted, G-O-TEA campaign strategists want to take advantage of the US Supreme Court's recent attack on the Voting Rights Act to make the playing field even more favorable for their side. So get prepared for another onslaught of voter suppression.

While Nevada Republicans haven't been successful in legislating voter suppression, they have so far succeeded in blocking progress on strengthening voting rights in this state. And to make matters worse, Nevada Republicans in Washington haven't said a peep as their G-O-TEA Congressional colleagues are dead-set on killing any chance of Congress fixing the Voting Rights Act. And as long as that isn't addressed, G-O-TEA forces plan to impose state sanctioned voter suppression in several states with Republican controlled governments.

Of course, Pat Hickey is now attempting damage control. Don't pay attention to that. Rather, pay attention to what his party does and doesn't do on voting rights. After all, actions speak louder than words.

And really, Pat Hickey was only saying aloud what G-O-TEA forces have quietly been working on all this time.

Closure

Last night, wedding bells were heard across California. While the US Supreme Court's dismissal of the Prop 8 law suit is now widely known, the Ninth Circuit Court of Appeals decision to vacate the stay yesterday came as an interesting surprise. And once that happened, marriage equality finally returned to California for good.

Four years ago, I still had raw wounds over what had occurred.

Prop H8 had passed in California. And even though I didn't have any immediate marriage plans, I nonetheless felt like all my future hopes and dreams were ripped away from me. I didn't know what to do... Until I got active in working to undo the damage.

Yet even though I'm seeing progress in my new home state, I still have raw feelings about what happened in California last fall. I still have wounds that are only starting to heal.

The yard signs that were stolen from my front yard. The homophobic insults coming from my own family. The belligerent Yes on H8 paid canvassers trying to bully my dad into taking away my civil rights. The "urine yellow" Yes on H8 signs being sprinkled all over my neighborhood by the anti-equality churches. These are my memories from the campaign.

The married couples wondering if their marriages were still "legally valid". The couples that waited too long and missed the chance to get a "limited edition marriage". The kids who were bullied in school before and after the election. These are still memories I have from the first days after Prop H8 passed.

Beating myself up constantly about why I didn't do more to stop this oncoming tragedy. This is the guilt I still have over my failure to do enough to stop Prop H8 from passing.

This was the ghost that was constantly haunting me. That's why I was taken aback when this happened.

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This week's marriage equality rulings have already been incredibly momentous. Yet even though they do remind us of all the work that must still be done to secure full equality in Nevada and nationwide, I must admit that yesterday's big news finally provided some major closure for me.

Shortly after the 2008 election, I felt sub-human at times. Why was it OK to campaign to strip away my civil rights and the civil rights of so many other Californians? That's why Judge Walker's 2010 ruling was so monumental... And why Wednesday's SCOTUS decision was such a relief. It finally provided closure.

One political campaign over one ballot initiative may not seem all that life changing at first. But when one looks at Prop 8 and all the other marriage ban initiatives, it's incredibly difficult to continue thinking that. Even though I was not in a relationship at the time, I truly felt like my dream was stolen from me. And I wondered when I could ever have it back.

That's truly the message of these discriminatory initiatives. These votes to take away people's rights dehumanize people. There's a reason why LGBTQ youth suicides and anti-LGBTQ hate crimes spiked after Prop 8's passage. That's why this one political campaign over this one ballot initiative mattered so much. It threatened not just the well being of families, but also the lives of many others with dreams of starting their own families in the future.


Now, I live in another state with its own marriage ban initiative that needs to be overturned or repealed. And one day, that will happen. And one day, LGBTQ Americans across the country will be able to fulfill their dreams. But at least for now, I'm finally experiencing some closure.

The Long Road Ahead

This week has been an incredibly momentous one for LGBTQ civil rights. As soon as the US Supreme Court issued its rulings on two critical marriage equality cases, Americans across the country (and here in Nevada) celebrated. Locally, we've been reminded of the continuing struggle for marriage equality here.





And yesterday, Jon Ralston provided another reminder. Specifically, Ralston was speculating on what might happen under a worst case scenario of a Republican takeover of the Nevada State Senate in 2014 and a loss of Senator Ben Kieckhefer (R-Reno, and the lone GOP Senator to vote for SJR 13 this year) to higher office or a primary challenge. Under this worst case scenario, what should otherwise be a re-passing of something that already passed could quickly become an ugly demise for equality.

This is a stark reminder of the high stakes and fragile road ahead for equality here in Nevada.

Sure, the Nevada Legislature is not the only path forward for marriage equality. As we speak now, Sevcik v. Sandoval is still pending in the Ninth Circuit Federal Court of Appeals, which is the same court that ruled on Prop 8 early last year. But as we saw with the Prop 8 and DOMA cases, federal law suits take a long time to resolve. And while the DOMA case especially sets a good precedent for LGBTQ civil rights going forward, it's still a gamble to speculate on how the US Supreme Court will specifically rule on Nevada's marriage suit.

So there are two paths forward to full civil marriage equality. Both are doable, but neither is 100% guaranteed. One likely requires Democratic control of both houses of the Nevada Legislature in 2015, while the other requires an amenable US Supreme Court with a majority inclined to use US v. Windsor (the DOMA suit) as precedent in Sevcik v. Sandoval. Equality activists will need to prepare to continue traveling up that long road ahead.

Long Time Coming... But Still Long Road Ahead

Today, something amazing happened. Today, I felt a little more equal under the law. And I wasn't alone.

Edie Windsor was stuck with a $300,000 tax bill after her wife passed away. She and her lawyer decided to do something about it.



And as a result, not only does Edie Windsor have to worry about that $300,000 tax bill, but she's also just set incredible legal precedent for LGBTQ equality going forward.

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It can and will be used exactly that way, and for marriage-equality supporters, it suggests the DOMA ruling in U.S. v. Windsor is not only a breakthrough victory today, but it will continue to offer opportunities for further victories fairly soon.

Note, the Supreme Court had some options, even once the majority agreed to strike DOMA down. In fact, while the outcome was widely expected, many predicted a narrow ruling -- the justices would point to federalists principles, and say that if a marriage is legal at the state level, the federal government will recognize it, too.

But the majority went considerably further than this, saying that DOMA didn't just violate principles related to states' rights, but also that the law was discriminatory.

There are legal scholars who can speak to this in more detail, but it appears that every state with anti-gay laws has a real problem on its hands. Windsor didn't establish marriage equality in all 50 states, but it did hand a meaningful legal precedent to everyone challenging discriminatory state laws.

Going forward, any and all laws challenged as discriminatory against LGBTQ Americans will face strict scrutiny in federal courts. And yes, this is a big f**king deal. Even though SCOTUS didn't enact nationwide marriage equality today, the days of marriage discrimination in America are likely numbered.



Yet with this being said, the Prop 8 ruling was still bittersweet. LGBTQ families here in Nevada and in the 37 other states without marriage equality will still have to wait for their day in court. At least we in Nevada can look forward to progress on the Sevcik case, that will take a while. How much longer will families here and in the other 37 less fortunate states have to wait for full equality under the law?

Still, even this is progress. Less than five years ago, the "great liberal Blue State" of California narrowly voted to ban marriage equality just months after marriages began. I had to live through that, and so did many others. But now, finally, marriage equality will be restored to California. And this truly does further the momentum for marriage equality nationwide.


We've come a long way to reach this point. However, we're far from finishing the beautiful struggle for equality. This was a long time coming, but we still have a long road ahead.

So What Happened to Prop 8?

We continue to get more details on what just happened... And what will happen going forward. Here's SCOTUS Blog (via Maddow Blog) on what will happen in California going forward.

"After the two same-sex couples filed their challenge to Proposition 8 in federal court in California, the California government officials who would normally have defended the law in court, declined to do so. So the proponents of Proposition 8 stepped in to defend the law, and the California Supreme Court (in response to a request by the lower court) ruled that they could do so under state law. But today the Supreme Court held that the proponents do not have the legal right to defend the law in court. As a result, it held, the decision by the U.S. Court of Appeals for the Ninth Circuit, the intermediate appellate court, has no legal force, and it sent the case back to that court with instructions for it to dismiss the case."

So what now? Again, marriages will soon resume in California. It may even happen as soon as today!



What The Court ultimately did was to invalidate the Ninth Circuit Court ruling and essentially revert all the way back to (then) Judge Vaughn Walker's historic ruling that struck down California's marriage ban on broad 14th Amendment equal protection grounds. While there may be some early confusion at some County Clerk offices in California (since there's no binding legal order just yet to mandate marriage equality), we will likely see marriages happen somewhere in The Golden State soon.

However, wedding bells won't ring here in Nevada... Just yet. But with the Sevcik v. Sandoval now pending in the Ninth Circuit, it may not be too much longer before marriage equality again makes a splash at SCOTUS.

So today, LGBTQ civil rights activists didn't score a complete victory. However, they still won battles big and small. And this story is still far from finished.

SCOTUS Marriage Equality Liveblog

We've been waiting... And waiting... And waiting. But now, it's finally here. The US Supreme Court has dropped its final rulings, and two of them are on marriage equality.

And...

7:03 AM: SCOTUS just ruled DOMA unconstitutional! In a 5-4 ruling, The Court explicitly described DOMA as discriminatory & illegal. There's more to come soon.

7:23 AM: After a few minutes of rumors and confusion, we now have a better idea of what's happening to Prop 8.

NorahODonnell: .@JanCBS: #SCOTUS suggesting it doesn't have jurisdiction for ruling on Prop 8; same-sex marriages likely to resume in CA @CBSNews

We're not 100% sure just yet, but it looks like SCOTUS is about to restore marriage equality to California this year! We in Nevada (and elsewhere) will have to wait a little longer.

Stay tuned here for more breaking news and more in-depth analysis on what's happening today.

7:27 AM: This was another 5-4 ruling. But in this case, Chief Justice Roberts joined the progressive Justices. And yes, we now know for sure marriage equality will soon resume in California!

Deliver on the Vow.

Earlier today, the US Supreme Court threatened four decades worth of civil rights advancements by overturning Section 4 of the Voting Rights Act (VRA) and demanding a redo from Congress. And unless and until Congress comes up with a new VRA Section 4, victims of ballot box discrimination will be forced to endure a much more difficult legal process to pursue justice. So is this what we have to endure going forward?

Perhaps not. Already, Senator Patrick Leahy (D-Vermont) is promising swift action on restoring the full VRA.

"Section 5 of the Voting Rights Act has protected minorities of all races from discriminatory practices in voting for nearly 50 years, yet the Supreme Court's decision to overturn the coverage formula effectively guts the ability of Section 5 to protect voters from discriminatory practices. I could not disagree more with this result or the majority's rationale. The Voting Rights Act has been upheld five times by the Supreme Court on prior occasions, and Section 5 was reauthorized and signed into law by a Republican President in 2006 after a thorough and bipartisan process in which Congress overwhelmingly determined that the law was still vital to protecting minority voting rights and that the coverage formula determining the jurisdictions to be covered was still applicable. Several lower court decisions in recent years have found violations of the Voting Rights Act and evidence of intentional discrimination in covered jurisdictions. Despite this sound record, and the weight of history, a narrow majority has decided today to substitute its own judgment over the exhaustive legislative findings of Congress.

As Chairman of the Judiciary Committee, I intend to take immediate action to ensure that we will have a strong and reconstituted Voting Rights Act that protects against racial discrimination in voting."

And that's not all. Senator Leahy already has the support of Mr. Majority Leader...

SenatorReid: Congress needs to right the wrong of this #VRA opinion and ensure that we do not turn back the clock on America’s democratic progress.

And that's not all, either. Civil rights hero and current Rep. John Lewis (D-Georgia) is vowing to press on to restore the VRA.

“These men that voted to strip the Voting Rights Act of its power, they never stood in unmovable lines,” Lewis told MSNBC’s Andrea Mitchell. “They never had to pass a so-called literacy test. It took us almost 100 years to get where we are today. So will it take another 100 years to fix it, to change it?” he asked.

Congress voted to renew the Voting Rights Act in 1970, 1975, 1982, and 2006, each time with increasingly larger margins.

Twenty Republican senators who are still serving in Congress supported re-authorization in 2006 and only 33 members in the House voted against it.“It is going to be very difficult,” to pass legislation in this Congress, Lewis admitted, “but people said the same thing in 1965.” “I think what happened today with the Supreme Court will motivate hundreds and thousands of people, African American, latino, white, Asian American, Native Americans, men, women, students, to come out. The vote is precious.”

And that's not even all! Back in March, even the former Republican House Judiciary Committee Chair vowed to restore the VRA if SCOTUS were to overturn any parts of it. Now, it's time for him to deliver on that vow.

This nation is supposed to provide "liberty and justice for all". Yet how is this even possible if millions of Americans can't even vote? How is this even possible when millions of Americans are constantly threatened by draconian voter suppression laws meant to prevent them from exercising this most basic right? It's time for Congress remember the most basic vow this country makes to its citizens.

How SCOTUS Is Forcing Congress to Save the Voting Rights Act

Over the years, we've looked at attacks on voting rights throughout the nation. We know many Americans still face hardships in even reaching the ballot box. But apparently, the US Supreme Court (majority) is again ignoring reality. In a "party line" 5-4 vote, SCOTUS overturned Section 4 of the Voting Rights Act.

So why is this important? Southern Poverty Law Center Founder Morris Dees explains.

Section 5 was enacted because Congress concluded that prior anti-discrimination laws were not strong enough to overcome the resistance of state and local officials determined to deny African Americans the ability to exercise the right to vote.  Those officials were concentrated in the South.  All too often, they would play games with the Justice Department, adopting new discriminatory voting schemes as soon as old ones were challenged. Section 5 put an end to the game playing.  It requires jurisdictions with a history of egregious voter discrimination – jurisdictions like Alabama – to submit proposed voting changes to the Justice Department or a federal court for review before the changes can be implemented.

Section 5 does not prohibit voting changes.  It simply provides protections against changes that are discriminatory.  Section 5 does not require covered jurisdictions to forever submit proposed changes to the Justice Department.  Those with a ten-year clean bill of health can avail themselves of the “bailout” provisions and remove themselves from Section 5’s coverage. [...]

The racial polarization in the presidential election was not unusual for my home state.  In the history of voting in Alabama, not a single black candidate has been able to defeat a white incumbent or win an open seat in a statewide race.  In majority white local jurisdictions, black political success is still rare.  Today, for example, not a single black sheriff or probate judge serves in a predominantly white Alabama county.  As a result of the high degree of white racial bloc voting, black office holders in Alabama are confined almost exclusively to minority districts created as a result of lawsuits like the one I filed in 1970 to ensure that black voters are not completely subsumed by majority white districts hostile to their interests.

The fact that voting is racially polarized does not mean that only racists can win elections in Alabama.  My state has seen many progressive white office holders over the years.  But, in a democracy, elected officials tend, over time, to be responsive to the interests of the electorate.  And in the state of Alabama, the electorate is still highly polarized along racial lines.  That polarization distorts the political process in ways that retard the growth of multiracial coalitions and give the majority the ability to dominate the minority. Given Alabama’s racial history and its reality of racially polarized voting today, the potential for electoral game playing still exists.  It’s that potential that Section 5 was designed to address.

In a way, civil rights activists dodged what would have been the deadliest bullet to progress on racial equality. The Court let Section 5 itself stand...

Or did it? After all, Section 5 (pre-clearance of voting laws in identified discriminatory trouble spots) can only be carried out with Section 4. And this is because Section 4 sets up the map of discriminatory trouble spots!

So what happens now? SCOTUS is sending this matter back to Congress. Wait... WHAT?!

Earlier today, the Supreme Court declared Section 4 of the Voting Rights Act of 1965 unconstitutional. Section 4 is the formula which determines which jurisdictions are subject to “preclearance” under the law, meaning that new voting laws in those jurisdictions must be reviewed by the Justice Department or a federal court before they can take effect. Although today’s opinion ostensibly would permit Congress to revive the preclearance regime by enacting a new formula that complies with today’s decision, that would require a functioning Congress — so the likely impact of today’s decision is that many areas that were unable to enact voter suppression laws under the Voting Rights Act will now be able to put those laws into effect.

That's why many civil rights activists are afraid. Congress will have to write a new Section 4 in order to enforce Section 5. So can Congress do that?

I think you already know the answer. So it's time to start asking Senator Dean Heller and Rep. Joe Heck. And it's time for President Obama and Senator Harry Reid to figure out how to actually make Congress work to save something that's so critical to saving our democracy. After all, how can our democracy function if many of our citizens can't even vote?

Mixed Bag from SCOTUS

So we finally got some big (US) Supreme Court news this morning. It wasn't quite what many were waiting for, but it's still incredibly important. Why?

First off, the nation's highest court continued to gut workers' rights and endanger American workers at risk of discrimination by issuing an opinion suggesting employers are only liable for workplace harrassment if the offender has direct hiring & firing power over the victim(s). Really? It's rulings like this one that has many Americans asking what planet the majority of Supreme Court Justices are living on.

However, that wasn't all. The Court also ruled on affirmative action. But here, The Court went in a somewhat different direction.

The U.S. Supreme Court struck a compromise in its first test of university affirmative action in a decade, telling a federal appeals court to give tougher scrutiny to a University of Texas admissions program.

In a 7-1 ruling, the court left intact a 2003 decision that reaffirmed the right of universities to use race as an admissions factor. The majority instead said a federal appeals court hadn’t properly applied the standards laid out in the 2003 ruling. Justice Ruth Bader Ginsburg dissented.

The U.S. Supreme Court told a federal appeals court to give tougher scrutiny to a University of Texas affirmative action program in a limited victory for opponents of racial preferences. The 7-1 ruling represents a compromise in one of the court’s highest-profile cases.

Today’s decision gives a limited victory to opponents of racial preferences by requiring tougher court review. The majority said universities must prove that their means of attaining diversity meet a demanding constitutional test known as “strict scrutiny.”“Strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice,” Justice Anthony Kennedy wrote for the majority.

So in this case, the SCOTUS majority essentially struck a compromise... And the compromise meant punting back to lower courts. Yet even here, there will be major implications going forward.

On one hand, colleges and universities will continue to face challenges in ensuring equal opportunity and a diverse student body. Thanks to the many inequities in contemporary American society, minority students still face major burdens in reaching college. Affirmative action was supposed to help correct this, but in recent years it's been rolled back and curtailed.

Yet today, some sort of affirmative action still stands. But with another case on this topic set to reach The Court next term, we still don't know yet what will be left of it in the more distant future.

What's really fascinating about this case is that The Court reached a broad compromise (7-1!)... But narrow decision. Is this a sign of what's to come on the big marriage equality cases that are still awaiting public rulings? Has The Court found a "restrained" way to rule in favor of LGBTQ equality? We don't know for sure just yet, but the latest tea leaves seem to be pointing to a fine tap dance to undo DOMA and narrow (for now) restoration of marriage equality to California.

But again, we still don't know for sure just yet. And with more release dates for rulings possible, we will have to wait either another day or another three days Still, it seems so weird to simultaneously scream in anger, breathe a sigh of relief, and eagerly await a reason to celebrate. It's so far looking like a decidedly mixed bag from SCOTUS.

Big Week Ahead

I know we just enjoyed a quiet, extended summer solstice weekend. So are you feeling better now? I am, so I know it's now time to get back to work!

This will be a busy week here at Nevada Progressive. We are expecting some huge Supreme Court rulings, big votes in Congress, and even a final chance to reflect on the major events in Carson City this year.

So what's coming up? First, immigration reform will be back in the news as the border security deal that emerged last week finally comes up for a vote on the Senate floor.

The fate of the Senate's immigration bill likely comes down to a vote today. If it fails, it will all but guarantee that immigration reform is dead. If it passes, it will all but ensure a clear path to the finish line in the Senate, which has struggled for years to find a compromise on the controversial and emotional issue.

The pivotal vote is on a border security compromise chiefly drafted by Republican Sens. Bob Corker of Tennessee and John Hoeven of North Dakota. “The offering of this amendment is a turning point,” Sen. Charles Schumer, D-N.Y., said Friday. “We’ve always known there would be large numbers of Democrats to support final passage of this bill in the Senate. But this amendment gives us a real chance of getting a very significant number of our Republican colleagues.”

This may finally reveal to us where Senator Dean Heller (R) will fall on S 744. If this amendment passes, he won't have any more excuses to dither on announcing his support for the overall bill. So just how strongly does he support this amendment?

But wait, there's more! The US Supreme Court will rule on not one, but two critical marriage equality cases this week. So what's at stake? Towleroad's Ari Ezra Waldman lets us know what to watch for.

1. Standing and Jurisdiction: Are the cases properly before the Court? Remember, the question in the Prop 8 case is whether the California citizens who wrote Prop 8 (the "proponents") had standing to appeal Judge Walker's original ruling declaring Prop 8 unconstitutional. The questions in the DOMA case are (a) whether Edie Windsor, having won at the Second Circuit, can both win and appeal, and (b) whether House Republicans are properly taking the role of defending DOMA. If the answer to any of those questions is NO, then the cases get tossed and the Court doesn't have to rule on anything substantive. We still win, sort of.

2. Scrutiny: The first substantive question is about the level of scrutiny, which is like asking: OK, before we see if you passed the test, we have to determine the passing grade. It's obviously a lot easier to pass when all you have to do is get a 50/100, and harder when you need a 90. If the Court takes the unlikely step of agreeing with President Obama (and rational legal thought) that discrimination on the basis of sexual orientation demands heightened scrutiny" (say, an 80 on the test), then look for DOMA and Prop 8 to be declared unconstitutional. Notably, denying already married couples federal benefits and preventing them from marrying in the first place are both so irrationally ridiculous, look for a substantive holding -- if the Court gets there -- that rejects the laws under any standard.

3. Equal Protection: This will be the basis for any substantive holding: that DOMA and Prop 8 fail to treat similar people equally for no good reason. We know this argument well, and even the Prop 8 Proponents' main witness, David Blankenhorn, recanted his views and now agrees that all couples, gay or straight, should be treated equally. One thing to look out for in this part of the decision is the fate of the "slutty heterosexual" argument. This is the argument that we need marriage only for straight people because they are the only ones that can have "accidental pregnancies." Gay couples cannot. The logic of that as a rationale for denying gay couples the honor of marriage doesn't pass the laugh test, but it is a notable argument because it turns the stereotype of the sex-crazed gay man around and places that noose around the the straight people!

4. Breadth of the Decisions: How far did the Court go? It could get rid of DOMA entirely, or keep us in this strange state of flux where DOMA is ok in some places and unconstitutional in others. In Perry, the Court could restrict its decision to California, or it could reach those seven other states that having "everything but" marriage, or it could hand down a national right to marry. In addition to this narrow way of looking at the decision -- what lawyers call the "holding" -- take note of the Court's language and its statements, or lack thereof, touching on gay equality and membership in American society. These are the words, coupled with the holdings, that will serve as the bases for future victories. The broader the language -- "Our system of government does not countenance discrimination on the basis of status," for example -- the stronger precent it will be in the future.

Got all that?

This is (one reason) why all eyes are on SCOTUS this week. The lives of many LGBTQ families are at stake. And the nation's highest court may expedite the arrival of full legal equality... Or further delay it.

But ultimately, equality will come. It's just a matter of if the Supreme Court has found just the right legal argument to do so now.

And finally, pay close attention to Chris Kluwe. He's not just a NFL superstar. He also gets how American society and our system of communities is supposed to work.

John Galt talks about intelligence and education without discussing who will pay for the schools, who will teach the teachers. John Galt has no thought for his children, or their children, or what kind of world they will have to occupy when the mines run out and the streams dry up. John Galt expects an army to protect him but has no concern about how it’s funded or staffed. John Galt spends his time in a valley where no disasters occur, no accidents happen, and no real life takes place.

John Galt lives in a giant fantasy that’s no different from an idealistic communist paradise or an anarchist’s playground or a capitalist utopia. His world is flat and two-dimensional. His world is not real, and that is the huge, glaring flaw with objectivism.

John Galt does not live in reality. In reality, hurricanes hit coastlines, earthquakes knock down buildings, people crash cars or trip over rocks or get sick and miss work. In reality, humans make good choices and bad choices based on forces even they sometimes don’t understand. To live with other human beings, to live in society, requires that we understand that shit happens and sometimes people need a safety net. Empathy teaches us that contributing to this safety net is beneficial for all, because we never know when it will be our turn.

So who is John Galt? Perhaps he's just an unrealistic and incredibly selfish fantasy who Nevada should stop trying to emulate.

So stay tuned for all of this and more this week. Oh, and Happy Summer!